Running Against Gays

THE SENATE Judiciary Committee last week churned out a transparent effort to energize the restive Republican electoral base by picking on gays and lesbians. It reported, on a 10 to 8 vote along party lines, a federal constitutional amendment stating that "Marriage in the United States shall consist only of the union of a man and a woman"; the amendment would prevent federal and state constitutions alike from being "construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." Senate Republican leaders are determined to promptly bring up the resolution on the floor, though it has no chance of passage. Its purpose, at this stage anyway, is simply to make a statement -- of solidarity with socially conservative voters, of hostility toward marriage equality for gays and lesbians, and of contempt for state governments that might choose to move toward a more inclusive conception of marriage.

Senators will indeed make an important statement with their votes on this amendment -- just not about the "sanctity of marriage." The vote, rather, will tally each member's willingness to deform the U.S. Constitution.

On the merits, there is simply no case for an amendment that would write into the Constitution an express command to every state and federal official to discriminate against a class of people. Marriage has always been a state matter in the American system, and nothing about the advent of gay marriage in a single state should change that. Opponents of same-sex marriage outside of Massachusetts have no cause for complaint. What goes on in that state doesn't concern them, and they have shown themselves perfectly capable of organizing in many other states to nip marriage rights for same-sex couples in the bud. What's more, federal law already guarantees that no state need recognize same-sex marriages performed in any other. So the only purpose of a federal amendment would be to prevent states that wish to move toward marriage equality from doing so. Even within Massachusetts, where opposition to same-sex marriage is hardly overwhelming, the experiment with it will not succeed if a majority of citizens over time believe strongly that the decision by the state's high court creating marriage equality should be overturned.

What exactly is the problem that requires upsetting 200 years of constitutional norms? The question answers itself.